specially concurring:
I concur in the decision to reverse and remand. I am in complete agreement with the majority’s analysis and holding in regard to the merits, but I do have some1' concern with the question of whether the Illinois rule that jeopardy does not attach in prosecutions for municipal ordinance violations is still viable. Because of the precedent of Village of Park Forest v. Fagan (1976), 64 Ill. 2d 264, 356 N.E.2d 59, I must agree that the rule is still applicable at least in cases where imprisonment is not a punishment that can be imposed on conviction. Accordingly, the dictum in City of Springfield v. Ushman (1979), 71 Ill. App. 3d 112, 388 N.E.2d 1357, which I wrote, indicating that the prosecution could not appeal from an acquittal in such a case must be disregarded as incorrect in cases where possible imprisonment is not involved. •
We must proceed with caution where, as here, there is uncertainty concerning a constitutional question and we are without the benefit of adversarial briefing from both sides. The uncertainty as to the application of jeopardy arises from decisions in Breed v. Jones (1975), 421 U.S. 519, 44 L. Ed. 2d 346, 95 S. Ct. 1779, Robinson v. Neil (1973), 409 U.S. 505, 35 L. Ed. 2d 29, 93 S. Ct. 876, and Waller v. Florida (1970), 397 U.S. 387, 25 L. Ed. 2d 435, 90 S. Ct. 1184. See also 3 W. La Fave & J. Israel, Criminal Procedure sec. 24.1(b) (1984).
In Waller, a defendant was convicted of a municipal ordinance violation and imprisoned. Subsequently, the State prosecuted him for a felony based on the same conduct and convicted and imprisoned him. The State sought to justify its prosecution on the theory that no double jeopardy existed because the city and the State were separate sovereignties. The United States Supreme Court rejected that contention and set aside the conviction obtained by the State. No contention was made that no jeopardy attached to the municipal prosecution because only an ordinance violation was involved. Subsequently, in Robinson, the same rule was applied even though the punishment for the prior municipal ordinance violation was only a fine. The case turned on the question of whether Waller was to be applied retroactively.
The Fagan court did not refer to either Waller or Robinson. As plaintiff here suggests, perhaps the reason was because different aspects of the double jeopardy doctrine were involved. Those cases involved a subsequent criminal prosecution after a conviction of a municipal ordinance. In Fagan, as here, retrial after acquittal on a municipal ordinance violation charge was sought. Perhaps the reason Waller was not cited was because there the defendant received imprisonment for the ordinance violation.
In any event, I question whether the fact that Illinois has treated ordinance violation cases as only quasi-criminal proceedings is, of itself, sufficient to distinguish this case from Waller and its progeny. In Breed, the court held that a juvenile adjudicated a delinquent for the commission of a robbery was placed in double jeopardy by a subsequent criminal prosecution for the same robbery. That court, quoting from Helvering v. Mitchell (1938), 303 U.S. 391, 398-99, 82 L. Ed. 917, 921, 58 S. Ct. 630, 632-33, described the critical question as being whether the proceeding was “essentially criminal” in nature (Breed v. Jones (1975), 421 U.S. 519, 528, 44 L. Ed. 2d 346, 355, 95 S. Ct. 1779, 1785). The Breed court indicated that the practice of labeling juvenile proceedings as not criminal in nature was not controlling.
Here, describing the proceedings as quasi-criminal in nature will not control if the proceedings are “essentially criminal.” The full message of Breed, Robinson, and Waller is not entirely clear. The precedent of Fagan controls here but, in view of the foregoing United States Supreme Court decisions, we should not interpret Fagan broadly. In those rare cases where imprisonment is a possible punishment for an ordinance violation (see Ill. Const. 1970, art. VII, sec. 6(e); Ill. Rev. Stat. 1985, ch. 24, pars. 1 — 2—1, 1 — 2—1.1), the proceeding may be "essentially criminal” in nature and jeopardy may attach. Our decision here should not be taken as a holding that jeopardy would not attach in such a situation.